ON MARCH 24, 2022, THE SENATE ADOPTED AMENDMENT #1 AND PASSED SENATE BILL 2077, AS AMENDED.
AMENDMENT #1 rewrites this bill to prohibit political subdivisions of this state from, arising from or as a result of a local action, restricting, prohibiting, or otherwise impairing the development and implementation of the types or sources of energy that may be used, delivered, converted, or supplied by the following entities:
(1) An electric utility, an electric cooperative, or an electric system that is owned or operated by a political subdivision;
(2) An entity that generates, sells, or transmits electrical energy in accordance with all applicable requirements of state and federal law;
(3) A gas utility or a gas system that is owned or operated by a political subdivision;
(4) A gas transmission company;
(5) A liquified petroleum gas dealer, liquified petroleum gas dispenser, or liquified petroleum gas cylinder exchange operator; or
(6) Other liquid petroleum transmission, distribution, retail, or storage entities.
This amendment preempts and declares void a local action of a political subdivision that directly or indirectly, is or acts as:
(1) A de facto prohibition of the siting, or a restriction, prohibition, or impairment of construction, expansion, or maintenance, of energy, industrial, or related transportation infrastructure within the jurisdictional boundary of a political subdivision;
(2) Regulation or enforcement of safety standards for interstate or intrastate pipeline facilities or interstate or intrastate pipeline transportation as those terms are defined in federal law;
(3) A moratorium, or a categorical prohibition, of the siting, construction, expansion, or maintenance of energy, industrial, or related transportation infrastructure within the jurisdictional boundary of a political subdivision for a period of time; or
(4) A prohibition or restriction on the ability of a distributor, retailer, wholesaler, or other energy or industrial infrastructure entity to exercise its rights provided by state or federal law related to the siting of energy infrastructure or related industrial infrastructure.
This amendment specifies that its provisions do not prevent or preempt:
(1) A political subdivision that owns or operates an electric or natural gas system from promulgating necessary rules or policies related to the electric or natural gas system;
(2) A local action that is state-authorized, ministerial in nature pertaining to land use, generally applicable to all types of commercial activities, and necessary to provide a public benefit;
(3) A local action that affects facilities for the transmission, distribution, collection, conversion, and use of solar energy;
(4) A local action to require a franchise from a political subdivision prior to providing electric or natural gas services within the jurisdictional boundaries of the political subdivision;
(5) A local action to grant, deny, amend, or revoke a franchise to provide electric or natural gas services within the jurisdictional boundaries of the political subdivision;
(6) A local action to establish, maintain, or enforce exclusive service areas for the provision of electric or natural gas services in accordance with state law;
(7) A local action arising from authority granted to administer a program in lieu of the department of environment and conservation regarding protection of human health, safety, or the environment if the grant of authority is authorized by federal or state statute or rule;
(8) A local action arising from a permit or coverage under a permit issued by the department of environment and conservation or a permit by rule; or
(9) A local action arising from the groundwater protection program or the drinking water program administered by the department of environment and conservation.
The full text of this amendment further specifies various jurisdictional and regulatory rights powers that are not affected by this amendment.
ON APRIL 25, 2022, THE HOUSE SUBSTITUTED SENATE BILL 2077 FOR HOUSE BILL 2246, ADOPTED AMENDMENT #1, AND PASSED SENATE BILL 2077, AS AMENDED.
AMENDMENT #1 incorporates the changes made by Senate Amendment #1 with the following substantive changes:
(1) Removes preemption of local action that restricts or impairs the activities described in the Summary for Senate Amendment #1, so that this bill will only preempt local action that prohibits such activities;
(2) Removes the provision that preempts local action that acts as a moratorium, or a categorical prohibition, of the siting, construction, expansion, or maintenance of energy, industrial, or related transportation infrastructure within the jurisdictional boundary of a political subdivision for a period of time;
(3) Specifies that this bill does not prevent or preempt a local action that is state-authorized, ministerial in nature pertaining to land use, generally applicable to similar types of commercial and industrial activities, and necessary to provide a public benefit; and
(4) Specifies that this bill does not prevent or preempt a local action that is reasonable police powers of a political subdivision to regulate the siting, construction, maintenance, or expansion of energy or industrial infrastructure along, over, or under the highways and streets within the political subdivision's corporate limits in order to reduce or prevent the risk of an eminent and substantial threat to human safety from the performance of those activities, including a political subdivision's right to charge reasonable, cost-based compensation for the use of the political subdivision's highways and streets. However:
(A) A political subdivision does not have the right to prevent or prohibit a distributor, retailer, or wholesaler from constructing, expanding, or maintaining energy or industrial infrastructure within the limits of the political subdivision, so long as the energy or industrial infrastructure is being constructed, maintained, or expanded within the political subdivision in accordance with reasonable police powers regulations; and
(B) This amendment does not grant police powers to a political subdivision on matters of siting, construction, maintenance, or expansion of energy or industrial infrastructure subject to regulation by state or federal agencies.